Wednesday, November 6, 2013

Victory for the First Amendment, Just a Little Too Late

The plaintiffs’ lawyer in an asbestos case has some pages on her website trumpeting her multi-million victories in automobile brake exposure cases. The jury was instructed, per CACI 100, that they should not use the Internet to find out about the case or the attorneys. But the defendant was nonetheless concerned that jurors might Google the attorney and see these pages. So it asked the trial court to order her to take the pages down. The court agreed, and the plaintiffs sought a writ. Although the trial ended while the writ was pending, the court of appeal reached the issue under the public interest exception to the mootness doctrine. The court, applying the commercial speech standard set out in the Supreme Court’s Central Hudson decision, found that the trial court violated the lawyer’s first amendment rights by ordering a prior restraint. Since there were less restrictive methods to protect the interest in a fair trial—namely, instructing the jury under CACI 100—the restraint was unconstitutional. So if the case wasn’t moot, the writ would have been granted.Writ denied as moot.